A group of 23 U.S. Senators, led by Senator Jeff Merkley (D-OR), Ranking Member of the Senate Budget Committee, Senator Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, and Senator Gary Peters (D-MI), Ranking Member of the Senate Homeland Security & Governmental Affairs Committee, have submitted an amicus brief to the Ninth Circuit Court of Appeals. The brief urges the court to maintain the protections for minors in immigration detention as outlined in the 1997 Flores Settlement Agreement.
The case in question, Flores v. Bondi, centers on claims that funding provided through the Republican-supported “One, Big Beautiful Bill Act” (OBBB Act) negated protections established by the Flores Settlement. The senators’ amicus brief argues against this position and clarifies how budget reconciliation processes operate.
The brief states: “Appellants’ reliance on the OBBB Act as evidence of changed circumstances rests on a fundamental misunderstanding of the budget reconciliation process and its constraints. Because the bill was enacted through reconciliation, its provisions were limited to budgetary matters—appropriations for detention capacity, not changes to legal standards governing detention. A provision terminating the Settlement would be a major substantive policy change that could not have survived the reconciliation process. Accordingly, the OBBB Act cannot constitute a changed circumstance warranting termination of the Settlement.”
Further addressing Congressional appropriations related to family residential centers, it continues: “Appellants argue that by appropriating funds for family residential centers, Congress expressed approval of family detention. But Section 90003 did not authorize any new program or establish any new directive with respect to detention—it appropriated money for detention capacity already authorized by law. Courts should not infer that an appropriation implicitly repeals substantive law.”
On distinctions between funding and policy change under reconciliation rules, lawmakers wrote: “The distinction between appropriating funds and amending substantive law matters enormously in the reconciliation context. Congress appropriated $45 billion for detention capacity, including family residential centers. But this appropriation does not supersede whatever legal standards otherwise govern such detention. Accordingly, the OBBB Act’s appropriation for detention capacity does not authorize detention of children in violation of the Flores Settlement, eliminate licensing requirements for facilities, or repeal the other substantive protections secured by the Settlement. Congress regularly appropriates funds for activities that remain subject to independent legal requirements. Appropriating money for federal construction projects does not exempt those projects from environmental review. Appropriating money to expand the federal workforce does not displace existing collective bargaining agreements. And appropriating money for detention does not eliminate the legal standards governing how that detention must be conducted—including the Settlement’s requirements for the treatment of children,”
Other signatories include Senators Michael Bennet (D-CO), Richard Blumenthal (D-CT), Cory Booker (D-NJ), Cathrine Cortez Masto (D-NV), Tammy Duckworth (D-IL), Martin Heinrich (D-NM), Mazie Hirono (D-HI), Tim Kaine (D-VA), Amy Klobuchar (D-MN), Ben Ray Lujan (D-NM), Ed Markey (D-MA), Chris Murphy (D-CT), Alex Padilla (D-CA), Jack Reed (D-RI), Jacky Rosen (D-NV), Bernie Sanders (I-VT), Adam Schiff (D-CA), Chuck Schumer (D-NY), Tina Smith (D-MN), Chris Van Hollen (D-MD), Elizabeth Warren (D-MA), Sheldon Whitehouse (D-RI) and Ron Wyden (D-OR).
The full text of their amicus brief is available online.
